Sawyer v. . Grandy

18 S.E. 79, 113 N.C. 42

• Court: Supreme Court of North Carolina
• Decided: September 5, 1893
• Status: Published

Opinion

MacRae, J.:

The Code, §590, declares tha.t upon the trial of an action a party interested in the event shall not be examined as a witness in his own behalf against the administrator of a deceased person, concerning a personal transaction or communication between the witness and the deceased person.

The paper offered as evidence of the contract of partnership purported to be the memorial of a transaction, or the transaction itself, between the plaintiff and the deceased person, against whose administrator the action is now being pressed. It has often been held that while under this section the plaintiff is incompetent to testify to the actual execution of the paper by the deceased, he may testify to the handwriting of deceased, if he can.

In Rush v. Steed, 91 N. C., 226, the Court, while adhering to this construction of the statute, calls the distinction a very fine spun one, but the reason of the act as stated by Mr. Justice Readjs in Halyburton v. Harshaw, 65 N. C., 88, seems to justify it: “There could never be a recovery against an unscrupulous party if he were permitted to testify where it would be impossible to contradict him ; the statute ought to be construed in view of this mischief.”

If plaintiff had been permitted to testify that he saw Berry sign the paper, it may have been impossible to contradict him, but he simply swears to the handwriting of deceased, and the matter is entirely open to contradiction, if defendant can furnish it, by others who are acquainted with the handwriting of deceased.

We are unable to make the distinction between the testimony of the plaintiff as witness to the actual signing of the instrument by deceased and by himself, for the deceased might be the only person who could have testified to the contrary, if plaintiff had been permitted to testify to the fact of the signing; and we think, upon the authorities cited, that his Honor erred in admitting this testimony.

The plaintiff relying upon the paper-writing as the contract of partnership, evidence of declarations of deceased seems to have been incompetent and immaterial on either side, as tending to contradict or to explain a written instrument, the construction of which is a question of law for the Court.

Error. New Trial.